AMENDMENT 705
Amendment: Section 2D1.1(b) is amended by redesingating subdivisions (8) and (9), as subdivisions (10) and (11), respectively; by redesignating subdivisions (5) through (7) as subdivisions (6) through (8), respectively; by inserting after subdivision (4) the following:
"(5) If the defendant is convicted under 21 U.S.C. § 865, increase by 2 levels.";
and by inserting after subdivision (8), as redesignated by this amendment, the following:
"(9) If the defendant was convicted under 21 U.S.C. § 841(g)(1)(A), increase by 2 levels.".
Section 2D1.1(b) is amended in subdivision (10), as redesignated by this amendment, by striking "greater" and inserting "greatest"; by redesignating subdivision (C) as subdivision (D); and by striking subdivision (B) as follows:
"(B) If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) created a substantial risk of harm to (I) human life other than a life described in subdivision (C); or (II) the environment, increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27.".
and inserting the following:
"(B) If the defendant was convicted under 21 U.S.C. § 860a of distributing, or possessing with intent to distribute, methamphetamine on premises where a minor is present or resides, increase by 2 levels. If the resulting offense level is less than level 14, increase to level 14.
(C) If—
(i) the defendant was convicted under 21 U.S.C. § 860a of manufacturing, or possessing with intent to manufacture, methamphetamine on premises where a minor is present or resides; or
(ii) the offense involved the manufacture of amphetamine or methamphetamine and the offense created a substantial risk of harm to (I) human life other than a life described in subdivision (D); or (II) the environment, increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27.".
Section 2D1.1(c)(1) is amended by inserting "30,000,000 units or more of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(2) is amended by inserting "At least 10,000,000 but less than 30,000,000 units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(3) is amended by inserting "At least 3,000,000 but less than 10,000,000 units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(4) is amended by inserting "At least 1,000,000 but less than 3,000,000 units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(5) is amended by inserting "At least 700,000 but less than 1,000,000 units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(6) is amended by inserting "At least 400,000 but less than 700,000 units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(7) is amended by inserting "At least 100,000 but less than 400,000 units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(8) is amended by inserting "At least 80,000 but less than 100,000 units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(9) is amended by inserting "At least 60,000 but less than 80,000 units of Ketamine;" after the line referenced to "Hashish Oil".
Section 2D1.1(c)(10) is amended by inserting "At least 40,000 but less than 60,000 units of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(11) is amended by inserting "At least 20,000 but less than 40,000 units of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(12) is amended by inserting "At least 10,000 but less than 20,000 units of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(13) is amended by inserting "At least 5,000 but less than 10,000 units of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(14) is amended by inserting "At least 2,500 but less than 5,000 units of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(15) is amended by inserting "At least 1,000 but less than 2,500 units of Ketamine; " after the line referenced to "Hashish Oil"; and by inserting "(except Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(16) is amended by inserting "At least 250 but less than 1,000 units of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except Ketamine)" after "Schedule III substances".
Section 2D1.1(c)(17) is amended by inserting "Less than 250 units of Ketamine;" after the line referenced to "Hashish Oil"; and by inserting "(except Ketamine)" after "Schedule III substances".
The Commentary to §2D1.1 captioned "Statutory Provisions" is amended by inserting "(g), 860a, 865," after "(3), (7),".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 10 in the section captioned "Drug Equivalency Tables" in the subdivision captioned "Schedule III Substances" by inserting in the heading "(except ketamine)" after "Substances";
by adding after the subdivision captioned "Schedule III Substances" the following new subdivision:
"Ketamine
1 unit of ketamine = 1 gm of marihuana";
and by adding after the subdivision captioned "List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)" the following new subdivision:
"Date Rape Drugs (except flunitrazipam, GHB, or ketamine)
1 ml of 1,4-butanediol = 8.8 gm marihuana
1 ml of gamma butyrolactone = 8.8 gm marihuana".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 19 by striking "(b)(8)" each place it appears and inserting "(b)(10)".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 20 in subdivision (A) by striking "(b)(8)(B) or (C)" and inserting "(b)(10)(C)(ii) or (D)"; and in subdivision (B) by striking "(b)(8)(C)" and inserting (b)(10)(D)".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 21 by striking "(9)" each place it appears and inserting "(11)".
The Commentary to §2D1.1 captioned "Application Notes" is amended by redesignating Notes 22 through 25 as Notes 23 through 26, respectively; and by inserting after Note 21 the following:
"22. Imposition of Consecutive Sentence for 21 U.S.C. § 860a or § 865.—Sections 860a and 865 of title 21, United States Code, require the imposition of a mandatory consecutive term of imprisonment of not more than 20 years and 15 years, respectively. In order to comply with the relevant statute, the court should determine the appropriate ‘total punishment’ and divide the sentence on the judgment form between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U.S.C. § 860a or § 865, specifying the number of months to be served consecutively for the conviction under 21 U.S.C. § 860a or § 865. For example, if the applicable adjusted guideline range is 151-188 months and the court determines a ‘total punishment’ of 151 months is appropriate, a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U.S.C. § 860a or § 865 would achieve the ‘total punishment’ in a manner that satisfies the statutory requirement of a consecutive sentence.".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 23, as redesignated by this amendment, by striking "(5)" each place it appears and inserting "(6)".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 25, as redesignated by this amendment, by striking "(6)" each place it appears and inserting "(7)".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 26, as redesignated by this amendment, by striking "(7)" each place it appears and inserting "(8)".
The Commentary to §2D1.1 captioned "Background" is amended in the ninth paragraph by striking "(b)(8)" and inserting "(b)(10)"; and in the last paragraph by striking "(b)(8)(B) and (C)" and inserting "(b)(10)(C)(ii) and (D)".
Section 2D1.11(b) is amended by adding at the end the following subdivision:
"(5) If the defendant is convicted under 21 U.S.C. § 865, increase by 2 levels.".
The Commentary to §2D1.11 captioned "Statutory Provisions" is amended by inserting "865," after "(f)(1),".
The Commentary to §2D1.11 captioned "Application Notes" is amended by adding at the end the following:
"8. Imposition of Consecutive Sentence for 21 U.S.C. § 865.—Section 865 of title 21, United States Code, requires the imposition of a mandatory consecutive term of imprisonment of not more than 15 years. In order to comply with the relevant statute, the court should determine the appropriate ‘total punishment’ and, on the judgment form, divide the sentence between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U.S.C. § 865, specifying the number of months to be served consecutively for the conviction under 21 U.S.C. § 865. For example, if the applicable adjusted guideline range is 151-188 months and the court determines a ‘total punishment’ of 151 months is appropriate, a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U.S.C. § 865 would achieve the ‘total punishment’ in a manner that satisfies the statutory requirement of a consecutive sentence.".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 21 U.S.C. § 841(f)(1) the following:
"21 U.S.C. § 841(g) 2D1.1";
by inserting after the line referenced to 21 U.S.C. § 860 the following:
"21 U.S.C. § 860a 2D1.1";
and by inserting after the line referenced to 21 U.S.C. § 864 the following:
"21 U.S.C. § 865 2D1.1, 2D1.11".
Reason for Amendment: This amendment responds to the new offenses created by the USA PATRIOT Improvement and Reauthorization Act of 2005 (the "PATRIOT Reauthorization Act"), Pub. L. 109–177, and the Adam Walsh Child Protection and Safety Act of 2006 (the "Adam Walsh Act"), Pub. L. 109–248.
First, the amendment addresses section 731 of the PATRIOT Reauthorization Act, which created a new offense at 21 U.S.C. § 865. The new offense provides a mandatory consecutive sentence of 15 years’ imprisonment for smuggling of methamphetamine or its precursor chemicals into the United States by a person enrolled in, or acting on behalf of someone or some entity enrolled in, any dedicated commuter lane, alternative or accelerated inspection system, or other facilitated entry program administered by the federal government for use in entering the United States. The amendment refers the new offense to both §§2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) and 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), and provides a new two-level enhancement in §§2D1.1(b)(5) and 2D1.11(b)(5) if the defendant is convicted under 21 U.S.C. § 865. The Commission determined that a two-level enhancement is appropriate because such conduct is analogous to abusing a position of trust, which receives a two-level adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill).
Second, the amendment modifies §2D1.1 to address the new offense in 21 U.S.C. § 841(g) (Internet Sales of Date Rape Drugs) created by the Adam Walsh Act. This offense, which is punishable up to statutory maximum term of imprisonment of 20 years, prohibits the use of the Internet to distribute a date rape drug to any person, "knowing or with reasonable cause to believe that — (A) the drug would be used in the commission of criminal sexual conduct; or (B) the person is not an authorized purchaser." The statute defines "date rape drug" as "(i) gamma hydroxybutyric acid (GHB) or any controlled substance analogue of GHB, including gamma butyrolactone (GBL) or 1,4-butanediol; (ii) ketamine; (iii) flunitrazipam; or (iv) any substance which the Attorney General designates . . . to be used in committing rape or sexual assault." The amendment provides a new two-level enhancement in §2D1.1(b)(9) that is tailored to focus on the more serious conduct covered by the new statute, specifically conviction under 21 U.S.C. § 841(g)(1)(A), which covers individuals who know or have reasonable cause to believe the drug would be used in the commission of criminal sexual conduct.
Third, the amendment eliminates the maximum base offense level of level 20 for ketamine offenses. Ketamine is a Schedule III controlled substance. The Drug Quantity Table at §2D1.1(c) provides a maximum offense level of 20 for most Schedule III substances because such substances are subject to a statutory maximum term of imprisonment of 5 years. If a defendant is convicted under 21 U.S.C. § 841(g) for distributing ketamine, however, the defendant is subject to a statutory maximum term of imprisonment of 20 years. Accordingly, the amendment modifies the Drug Quantity Table in order to allow for appropriate sentencing of 21 U.S.C. § 841(g) offenses involving larger quantities of ketamine that correspond to offense levels greater than level 20. This approach is consistent with how other drug offenses with a statutory maximum term of imprisonment of 20 years are penalized and with how other date rape drugs are penalized. The amendment also provides a marihuana equivalency in Application Note 10 for ketamine (1 unit of ketamine = 1 gram of marihuana).
Fourth, the amendment adds to §2D1.1, Application Note 10, a new drug equivalency for 1,4-butanediol (BD) and gamma butyrolactone (GBL), both of which are included in the definition of date rape drugs under 21 U.S.C. § 841(g). Neither is a controlled substance. The drug equivalency is 1 ml of BD or GBL equals 8.8 grams of marihuana. The Commission has received testimony that both substances are at least equipotent as GHB, which is punished at the same marihuana equivalency.
Fifth, the amendment addresses the new offense in 21 U.S.C. § 860a (Consecutive sentence for manufacturing or distributing, or possessing with intent to manufacture or distribute, methamphetamine on premises where children are present or reside), created by the PATRIOT Reauthorization Act. The new offense provides that a term of not more than 20 years’ imprisonment is to be imposed, in addition to any other sentence imposed, for manufacturing, distributing, or possessing with the intent to manufacture or distribute, methamphetamine on a premises where a minor is present or resides. The amendment modifies §2D1.1(b)(8)(C) to provide a two-level increase (with a minimum offense level of 14) if the defendant is convicted under 21 U.S.C. § 860a involving the distribution or possession with intent to distribute methamphetamine and a three-level increase (with a minimum offense level of 27) if the defendant is convicted under 21 U.S.C. § 860a involving the manufacture or possession with intent to manufacture methamphetamine.
To account for the spectrum of harms created by methamphetamine offenses, and to address the specific harms created by 21 U.S.C. § 860a, the amendment builds on the "substantial risk enhancement." This multi-tiered enhancement was added to §2D1.1 in 2000 in response to the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106–310, Title XXXVI. See USSG App. C (Amendments 608 and 620 (effective Dec. 12, 2000, and Nov. 1, 2001, respectively)). Prior to this amendment, the first tier provided a two-level increase for basic environmental harms, such as discharging hazardous substances into the environment. The second tier provided a three-level increase, and a minimum offense level of 27, for the substantial risk of harm to the life of someone other than a minor or an incompetent. The final tier provided a six-level increase and a minimum offense level of 30 for the substantial risk of harm to the life of a minor or incompetent or the environment.
The Commission determined that distributing, or possessing with the intent to distribute, methamphetamine on a premises where a minor is present or resides presents a greater harm than discharging a hazardous substance into the environment, but is a lesser harm than the substantial risk of harm to adults or to the environment created by the manufacture of methamphetamine. Therefore, the amendment adds a new tier to the enhancement in the new subdivision (b)(10)(B) in order to account for this conduct. A defendant convicted under 21 U.S.C. § 860a for distributing, or possessing with the intent to distribute, methamphetamine on a premises where a minor is present or resides will receive a two-level enhancement, with a minimum offense level of 14.
To address the overlap of conduct covered by the enhancement for the substantial risk of harm to the life of a minor and the new offense of manufacturing, or possessing with the intent to manufacture, methamphetamine on a premises where a minor is present or resides, a three-level enhancement and a minimum offense level of level 27 will apply in a case in which a minor is present, but in which the offense did not create a substantial risk of harm to the life of a minor. In any methamphetamine manufacturing offense which creates a substantial risk of harm to the life of a minor, a six-level enhancement and a minimum offense level of level 30 will apply.
Sixth, the amendment updates Appendix A (Statutory Index) to include references to the new offenses created by the PATRIOT Reauthorization and Adam Walsh Acts.
Effective Date: The effective date of this amendment is November 1, 2007.